The Cupeņo Removal of 1903

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In the Name of the Law - The Cupeño Removal of 1903


Home. The place you're from. For most people, it's the center of their world; if they lose their home, they lose their way.

In 1903 the Cupeño Indians of Southern California lost their home. The United States Supreme Court ruled that they had no right to the land that had been their home for centuries. Ordered by the government to a reservation at Pala, the Cupeño were forced to make a new home.

The eviction of the Cupeño in 1903 was the last of Indian "removals" in the United States, ending a federal policy of forced relocations that had begun 75 years before, and is best-remembered in the Cherokee "trail of tears." It came at a time when attitudes were changing, both in Washington and around the nation. Various groups and individuals took up the cause of the Cupeño, yet in the end, the old policies prevailed.

The Warner Ranch Indian Removal (as it was generally called at the time) generated a remarkable amount of newspaper and magazine coverage, most of it focused on the Cupeño and their principal village at Cupa. This story, as well, will focus mostly on the Cupeño. But there were other villages affected as well: the Luiseño villages at Puerta la Cruz and Puerta Chiquita, the Kumeyaay villages at Mataguay and San José, and San Felipe, another Kumeyaay village on the edge of the desert. The events and emotions described were faced by those villagers as well.

"In The Name of the Law" was Helen Hunt Jackson's original title for her famous 1884 novel Ramona. It sums up what she saw as the greatest outrage of our nation's treatment of her native people - that so many things were done not just by a few unscrupulous men, but by government officials, "in the name of the law."

My interest in the Cupeño Removal began on a warm August afternoon in 1977, when I drove down to the Pala Indian Reservation looking for someone.

A few months before, I had begun reading about the Cupeño people as part of my research into the history of Lost Valley. It was not long until I discovered Jane Hill's invaluable book Mulu'Wetam: The First People, published by the Malki Museum Press. It was there I first saw Roscinda Nolasquez, smiling gamely in a photo on the back cover. She had been Hill's "principal informant" (as the anthropologists used to say) for this remarkable collection of Cupeño stories, language, and grammar.

The brief biography under her photo said Nolasquez "as a child was removed with her people from Cupa to Pala." Clearly, this was someone I needed to meet. But was she even still alive? The book had been published in 1973, and she was already an old woman then. I checked the phone book, and found that she was still listed, but rather than call, I decided to drive down and see for myself.

After a little hesitation, I went into the store across from the old mission chapel and asked if anyone knew where Roscinda Nolasquez lived. Someone gave me directions down the road to "the last white house on the left before the creek." I drove down there and knocked on the door.

At first, I didn't think Roscinda was going to let me in, as she peered at me through the screen door; but I explained my interest, and when I told her I spent my summers at Lost Valley, she brightened up and invited me inside.

We talked about all sorts of things, from place names to bedrock mortars, but what I have never forgotten was what she said about the removal. "We lost our land, our homes, our water." She talked about how the old people didn't want to go, about how hot it was during the three-day trek to Pala and about how thirsty she was. There was no malice, no anger, she was simply reciting the facts. After an hour or so, I left with an invitation to come back again.

Up until then, my interest in the Cupeño had been purely mechanical, just another part of my research on Lost Valley. But hearing Roscinda talk about life at Cupa, her childhood, and especially the removal, put a human face on everything. Her stories were so compelling, I wanted to know more.

Roscinda encouraged me, and more than once told me that she trusted me to be honest and to tell the truth about what had happened - high praise, but also a grave responsibility. Roscinda didn't really like talking about the removal, and I never pushed her too hard on the subject, but over the years we talked about it many times.

A friend of mine once asked her, if she could, would she like to go back and live at Cupa again? "No," Roscinda said, "only memory goes back." From her memories, Roscinda did what she could to keep alive the history, language, and culture of her people. She wanted others to remember as well, and I shall always count myself fortunate that I was able to be one of her students.

For the old Cupeño, there was always a clear distinction between the things they'd experienced and things they'd only heard about. In telling their early history, they always prefaced each story with the word ku'ut - "it is said." Historians must also rely on what has been said. The story that follows has been pieced together from hundreds of sometimes conflicting sources. From them, I have tried to arrive at the facts. I trust that I have at least come close to Roscinda's hope that I would be honest and tell the story truthfully.

The People of Cupa

You see that graveyard out there? There are our fathers and our grandfathers. You see that Eagle-nest mountain and that Rabbit-hole mountain? When God made them, he gave us this place. We have always been here. We do not care for any other place. - Cecilio Blacktooth, 1902

The Cupeño (coo-pen-yo) were one of the smallest tribes in California, and are estimated to have never numbered more than a few hundred people. They are related to the larger and better known Cahuilla tribe, and their language is similar. Their territory was centered around Warner Hot Springs in northeastern San Diego County. Their main village there was known as Cupa - hence their name. Other Cupeño lived nearby at Wilakal (San Ysidro).

Long before the arrival of the Spanish, the Cupeño had lived off the land as hunters and gatherers. There was hardly a plant or animal found in their territory that was not used for food, for medicine, or for manufacture. Their principal food was the acorn, which was harvested, dried, and ground into meal each fall. They also gathered chia, agave, pine nuts, cactus fruit and other plants and seeds in season, hunted rabbits, quail, squirrels, wood rats, and deer. Their social order was built on the clan, an extended family group, each with its own political and ritual leaders and territory.

Beginning in the 1820s, the Cupeño came under the influence of the Mission San Luis Rey, which ran stock in the valley below the village. According to J.J. Warner, an early American settler who first saw the valley in 1831, at that time the Mission San Diego had 5,000 cattle pastured in the southern end of the valley, and "The north half was occupied by the San Luis Rey Mission, and had buildings upon it, and vineyards planted by the mission. In the summer it was occupied by sheep and in other seasons by brood mares." From the missionaries, the Cupeño learned European-style farming and other trades, adobe construction, a smattering of Spanish, and of course, Catholicism.

In 1844, Warner received a Mexican land grant that covered most of the valley. Some of the Cupeño found work on the ranch as cowboys and ranch hands. From Warner, the land passed on to other owners. In 1869, former California Governor John Gately Downey began buying up the interests of various owners, and by 1880 was the sole owner of what everyone still called the Warner Ranch.

In 1875, a reservation was set aside for the Cupeño, taking in the hot springs, the village of Cupa, and the area around it. But it was rescinded in 1880, when a new survey extended Downey's lands across the village.

Yet Cupa survived for another generation. In 1902, C.F. Lummis noted:

"At the village itself, the beautiful hot springs well up from the bottom of a rocky cleft, their sulphurous stream clearly visible on a cool morning. The water is led in wooden flumes to rough-board bath-houses, whence it issues to form several bluish pools, and then trickles on down the arroyo, irrigating a few score of acres. The Indian village consists of some forty houses; of adobe, except two or three; comfortable, substantial and neat. There is a little adobe chapel, and a new $1200 schoolhouse with a resident teacher - Mrs. Josephine Babbitt, who has been with these people a dozen years. Several hundred acres are cultivated - careful little fields and orchards. There are irrigating ditches and a reservoir."

So far as human memory was concerned, the Cupeño and their neighbors had always lived in the valley.

Law But Not Fact

[S]o expedient has it always been found in the New World to affirm the natives' right of ownership where the soil could be bought for a song, and to deny it when forcible possession must be taken. - H.H. Bancroft, 1885

As early as 1873 there had been rumors that Governor Downey planned to throw the Indians off the Warner Ranch. In 1883, noted Indian rights advocate Helen Hunt Jackson visited the Cupeño, and noted that, "the Indians know very well that according to the usual course of things in San Diego County they are liable any day to be ejected by process of law." As in many things, Jackson was again ahead of her time. It would be nearly a decade before the legal efforts to remove the Cupeño began.

Part of Downey's delay may have stemmed from his own legal battles to prove his ownership of the ranch. It was not until 1888 that he finally obtained a clear title. He may also have been waiting for the outcome of another Indian removal suit, the case of Byrne v. Alas, which began working its way through the courts in 1883. The case was similar, pitting the Indians living at Soboba, near San Jacinto, against San Bernardino businessman Matthew Byrne, who had purchased 710 acres in the Rancho San Jacinto Viejo which included their village site.

The case was heard in San Diego County Superior Court, and the villagers not surprisingly lost the first round. The case was appealed to the California Supreme Court however, and in 1888 the court affirmed the Sobobas' right to their village lands, citing the precedents in Mexican law which protected permanent villages, even within the boundaries of rancho grants. It was only a possessory right, but it was enough.

Still, Downey was determined to drive the Indians off the ranch. In the summer of 1892, he filed  two lawsuits against the Cupeño and the neighboring villages. The suit against Cupa and Puerta la Cruz was known as Downey v. Barker et al. (with Alejandro Barker heading the list of the 86 defendants). Mataguay, San José, and La Puerta were grouped together as Downey v. Quevas et al. (with José Quevas heading the list of 62 defendants).

During the Soboba suit, Los Angeles attorney Shirley Ward had served as Special Attorney for the Mission Indians, representing the United States Attorney General's Office. Now, along with Frank D. Lewis of Riverside (who had been appointed a Special Attorney in 1891), he would try to win the Warner Ranch case.

Downey was represented by his attorney, State Senator Stephen M. White of Los Angeles. The Merchant's Exchange Bank of San Francisco (who held the mortgage on the ranch) also had their own attorney in court to look after their interests.

After the usual exchange of preliminary documents, the case was heard by San Diego County Superior Court Judge George Puterbaugh on July 17-19, 1893. Downey's case was simple and to the point. Downey held title to the old rancho, based on Warner's Federal patent, and had paid the taxes on it for years. The Indians were trespassers, his attorneys maintained, and should be removed. With that, the plaintiffs rested.

Ward and Lewis took a more calculated approach. Their case followed the lines of the Soboba suit. The possessory rights of permanent villages were protected under Mexican law, and the United States, in acquiring California under the Treaty of Guadalupe Hidalgo (1848), had pledged to uphold Mexican land laws.

This point was clearly understood by the earliest American officials in California. In his 1850 Report on the Subject of Land Titles in California, William Carey Jones wrote, "I understand the law to be that wherever Indian settlements are established, and the Indians till the ground, they have a right of occupancy in the land they need and use; and whenever a grant is made which includes such settlements, the grant is subject to such occupancy...."

Ward and Lewis introduced the records from the Mexican archives, and the United States Land Commission that had reviewed the rancho grants. They also wanted to prove the Cupeño's long occupancy at Cupa, so they called some of the oldest members of the tribe to the stand to share their memories with the court. Alejandro Barker (at 39, the only registered voter at Cupa) did the translating. A reporter for the San Diego Union noted,

"Being deeply interested in the ultimate outcome of the suit, Barker may consider himself highly honored by the council for the plaintiff, who, in thus allowing him to interpret the remarks of his fellow citizens in a tongue that nobody by himself understood, evinced a faith in his honesty that should be gratifying in the extreme."

One of the most interesting witnesses was Machola Moro, the widow of longtime Cupeño captain José Maria Moro. The San Diego Union (July 18, 1893) described her as "a picturesque old Indian woman about 80 years of age [she was closer to 75], who was born on the rancho and who has continuously lived there ever since. She did not speak Spanish... but gave her testimony in the Indian tongue." In part she said:

"I live at Agua Caliente [Cupa] or Warner's Ranch, right at the Hot Springs; I was born and raised right there... I remember when Juan Largo [J.J. Warner] came to live on the ranch, I was about [a] half-grown woman then. There were as many Indians living at Agua Caliente village then as now - a little more then than now - more old people then than now. The Indians then used to live a good deal on acorns and lots of other stuff that grows around the Hot Springs there - grasses and cactus and one thing and another.... Here are some of the different seeds we used to use.

(At this point, according to the Transcript on Appeal, "Witness opens [a] package and shows various kinds of seeds of wild grasses, fragments of cactus, and various other products of the soil and seeds that they lived upon there.")

"We got the [acorn] and pounded it on the rocks and put some hot water on it and took the bitterness out of it, and made a kind of mush.

"My husband was José Maria Moro; he was the captain of the Agua Caliente village, had control over the people that lived there and advised them to keep quiet and work - [he] was Captain a long time.

"The Indians had cultivation at Agua Caliente when I was a little girl, and my husband used to cultivate land. They didn't farm as much as they do now, because they had nothing to work with. They worked by a small stick with a little piece of iron on top of it and plowed with it by horseback from the horn of the saddle. [They] didn't farm much, but farmed a little wheat and beans and corn and one thing and another - pumpkins and watermelons.

"The Indians used the water of the Agua Caliente to irrigate their crops and used it for bathing, and used it to take the bitterness out of acorns and they used it all the time. In those early times there were some fruit trees at Agua Caliente. Antonio Garra had an orchard a little higher up, and another one a little higher up above the springs; it was planted by his father. When my husband died he left his right to his son and from that on, he planted some few trees, after the old man died, the father of my husband.

"I remember when the men were kind of broken up. The priests were coming along there, and we had church sometimes and prayed there; whenever the priests got there, we went to the church and prayed. The priest never lived there, he came down from some place else. The church had a kind of corral - all around it there and big houses all around it, but there was a cross right in the middle, where the church is now - right there standing up. It was not really a church-house, but a big house they kept the grain [in] - a kind of grain-house; they moved the grain and one thing and another, and then would have the church inside sometimes; they brought their children and had church where the cross was.

"The big house for keeping grain in was built by some of the men who lived right there at the Hot Springs; under orders from the priests, the Indian men, women and children all worked on it, and built the house. I was never at San Luis Rey Mission while the priest had charge of it."

Leonardo Owlinguish, then about 70, testified that long before Warner came to the valley, the village at Cupa "was under the charge of the priests of San Luis Rey Mission; that the Indians worked the lands, but were told to do it by the priests, and that sometimes they took the crops that grew there down to the San Luis Rey mission on pack animals."

Among the other witnesses called were Cecilio Chuperosa, Marcelina Blacktooth (who had lived at San Luis Rey during the days of the missionaries), Anastasia Nowilet, and Adolfo Moro and his wife, Silvestra, the daughter of Machola Moro. Many other Cupeño came to San Diego during the trial to sit in on the proceedings.

A number of early Mexican and American settlers also testified or gave depositions on behalf of the Cupeño. All testified to their long occupation at the hot springs. Pio Pico, the last Mexican governor of California (then 92 years of age) testified that the Cupeño had been there when he first visited the springs in 1820.

Downey's attorneys objected to all of this testimony (and in fact to all the evidence introduced on the Cupeño's behalf) as irrelevant, arguing that "The possession of the parties... is immaterial to the case, that the patent of the United States Government controls any mere matter of possession." Judge Puterbaugh reserved his ruling, but later their objection was sustained, and every single piece of the Cupeño testimony ruled inadmissible.

In addition to his objection, Senator White also cross-examined many of the witnesses, especially on the subject of agriculture. What crops were grown? How big were the fields? How were they irrigated? Ward and Lewis wanted to show that for 50 years the Cupeño had been farmers. White wanted to prove that they had not been so civilized.

As for Downey, he was clearly no longer in control of himself or the case. "[D]uring its trial three years ago ex-Gov. Downey was present and made himself conspicuous by interposing questions to the witnesses, much to the annoyance of the attorneys on both sides," the San Diego Union later reported.

"Senator White was his attorney, and when this cross-questioning became took annoying he would impatiently remind the childish old man that he was trying the case, and that matters would be much facilitated if the ex-governor would keep still."

Despite their early confidence, Downey's lawyers were taking no chances. After Ward and Lewis had rested, they asked to reopen their case and submit further evidence. They pointed out that Warner's 1844 grant did not include the required clause, protecting the Indians' rights.

Ward and Lewis argued that because Indian possessory rights were always protected under Mexican land laws, the Cupeño's rights were included in the other protected usages ("servidumbres") that were cited in the Warner grant. This was, they admitted, a stretch, but in the Soboba case, the court had ruled that Indian occupation was in the same character as a highway - that is, an easement, allowing use by others (which is what the term servidumbres technically means).

Downey's attorneys replied with the astonishing argument that the reason the Cupeño's rights were not protected in the Warner grant was because there had not been any Indians living in the valley in 1844! To support their outrageous claim, they introduced into evidence a letter Warner had secured at the time of his grant:

Office of the First Justice of the Peace}

San Diego                                             }

"In view of the petition which the party interested remits to this office, I beg to state that the said Valle San José is, and has for the past two years been vacant and abandoned, without any goods nor cultivation on the part of San Diego; but said place belongs at the present time to the said mission, and at petitioner's request I sign this, in San Diego.

August 6, 1844

Juan Ma. Marron"

This short letter was cited in each successive court ruling against the Cupeño, and so deserves a little closer examination. Under Mexican law, land could not be granted to private individuals which was in use by any mission. The Mission San Diego had for many years kept livestock and raised crops in the southern part of the Valle de San José as an outpost of their asistencia at Santa Ysabel. The mission had been secularized in 1834, but was still controlled by a government administrator, and thus still had a nominal claim on the lower valley in 1844. The point of this letter, then, was to clear the way for the Warner grant so far as the mission was concerned. Downey's lawyers, however, argued that the phrase "vacant and abandoned" showed that there were no Indians living in the valley at the time.

J.J. Warner naturally saw through this farce. A week before the trial began, the 85-year-old Warner gave a deposition on behalf of the Cupeño before Stephen White and others at his home in Los Angeles. Asked about letter, he apparently had a map of the rancho in front him when he replied:

"Let me explain, sometimes we are misled from not understanding certain facts; and now I will tell you so that you may understand this, both you and your client and anybody else. You see, here is the Agua Caliente and there is El Valle de San José. Now El Valle de San José, so far as the mission of San Diego was concerned, had no connection whatever with the Agua Caliente. When I wrote the petition, I was referring to the southern half of the San José Valley; that is a geographical piece of land."

The northern half of the valley - the Agua Caliente - had long been utilized by Mission San Luis Rey. Even if Marron's letter meant there were no Indians in ex-Mission San Diego's territory in 1844 (which it most certainly did not), it proved nothing about the village at Cupa. In fact, Warner's diseño (map) submitted along with his grant application shows by name the villages of Agua Caliente, San José and Mataguay, and several other unnamed villages. Factually, the issue was clear, but legally, it was still in doubt.

After three days of testimony, both sides rested and were given 30 days to file their final submissions.

Ward and Lewis presented a parallel defense for the people from San José, Mataguay and La Puerta when that case came before Judge Puterbaugh shortly thereafter, and again placed some of the oldest residents of those villages on the stand. They also asked to introduce all the evidence submitted in their first case, but once again Downey's lawyers objected. After the hearing, the suit was effectively combined with the Cupeño case, and the two suits moved together through the courts from then on, all the way on through the U.S. Supreme Court.

With the testimony completed, the two cases should have moved along promptly, but a series of delays - both legal and otherwise - would delay the ruling for almost three and a half years.

To begin with, on March 1, 1894, Governor Downey died at the age of 67. Settling his estate was complicated by the fact that for more than a year, no will could be found. His nephew, J. Downey Harvey, was appointed to represent the family, and was substituted as plaintiff in the Warner Ranch suits. Then shortly after Downey's death, Senator White asked for additional time to submit proof that Downey had paid all the taxes on the ranch for the past ten years.

Finally, in November of 1895, the cases were transferred from Department II to Department III of the San Diego County Superior Court after Judge Puterbaugh disqualified himself, "owing to having had some connection with the Warner ranch property."

It was about time, too. For years, Judge Puterbaugh had been an active advocate of the construction of a dam at the lower end of the Warner Ranch - a project that would require the eviction of the La Puerta and San José villages.

Judge W.L. Pierce presided in Department III. He waited more than a year before ruling on the cases, submitting his judgment on December 29, 1896, just days before he retired from the bench.

First, he upheld Downey's lawyers' objection to all of the evidence entered on behalf of the Cupeño, ruling it inadmissible. The government patent, he held, was conclusive as to property rights. In other words, the Cupeño were left with absolutely no defense in the eyes of the court! "Thus," Ward and Lewis later wrote, "the entire issue between the parties was and is one of law and not of fact. It is as to the materiality and admissibility of defendant's evidence, and not as to the sufficiency or weight thereof."

Judge Pierce also accepted Downey's lawyers' contention that the Cupeño were not residing on the land at time of the take over of California by United States in 1846. Indeed, they "were not, nor was either of them, nor were the ancestors or ancestor of either of them at the time of the acquisition from the Mexican government by the United States of the territory embraced within the state of California, and for more than thirty years prior thereto, or at all, recognized as Mission or Pueblo Indians by the laws of Spain, Mexico and the United States, and were not in the adverse possession, occupancy or use of the following described land...."

With those two rulings, the result was inevitable. The Cupeño and the other villagers on the Warner Ranch were told they had no legal right to what had always been their homes.

Ward and Lewis immediately filed a motion for a new trial. A hearing was held on their motion in February, 1897 and in April their request was denied. The only avenue left was an appeal to the California State Supreme Court; but before it could be submitted, a $6,100 bond would have to be filed with the court. The Downey family attorneys assumed that no one would lay out that kind of money on behalf of the Cupeño, but they were wrong. The Indian Rights Association of Philadelphia managed to raise the money in just a few days, and the appeal was filed in June, 1897.

Forced to resume their legal battle, the attorneys for the Downey heirs continued their two-pronged attack - first, that there were no Indians on the land at the time of the Warner grant, and second, even if there were, any rights they might have once held had been lost in the intricacies of the Land Commission process.

Ward and Lewis stuck to their guns:

"Under Mexican law, Warner held the legal title, subject to the easement of the Indians' possessory rights. The confirmation of this legal title and the issue of the patent therefore in no way changed the character of such title, nor freed it from the easement in favor of the defendants....

"Under the Mexican law, no obligation rested upon such Indians as these of acquiring their property rights by specific grant; but such rights were given and protected by the general law of the land, and the United States by treaty guaranteed that it would protect all private property rights existing within the ceded territory...."

The Downey lawyers denied the notion that the Cupeño had any possessory rights descending from Mexican law:

"There can be no issue here as to what the law of Mexico authorizes, unless that law was carried into and made a part of the statutory enactments of the United States. The United States as a sovereign [nation] had the power to do what ever it chose with the property acquired from Mexico regardless of any treaty stipulations."

Yet in the Treaty of Guadalupe Hidalgo, the United States had pledged to protect all land titles in California, and the act authorizing the Land Commission in 1851 had specifically ordered a study of the status of Indian titles so that a determination could be made. There is no record that such a report was ever completed, but during the appeals process, the courts operated on the assumption that the requirements of the act had been obeyed, and that the rights of the Indians had been found wanting. Lewis disagreed:

"It was reasonable to suppose that Congress did not intend the provisions of the Act of 1851 to apply to Indians who knew no English, could not read and write, and who knew as little regarding individual or tribal ownership of property as they did of Acts of Congress or of Land Commissioners.

"It is evident from the fact that Congress in passing the act provided in the sixteenth section, making it the Commissioners' duty to report on Indian claims, at that time at least, had no intention to bind the Indians by its other provisions..."

No matter, the Downey attorneys argued, "neither treaty or Congressional act was designed for the benefit of the Indians." At the time of the Warner grant, they claimed, the Cupeño were "mere outside barbarians - uncapable [sic] of ownership and incapacitated for civilization." "The defendants are not entitled to any consideration here," they wrote. "They do not belong to civilization. They must be attended to, it is true, and protected, but they cannot interfere with the effect of a patent of the United States."

But they strike closest to the heart of the matter when they argued:

"The courts cannot exercise any direct appellate jurisdiction over the rulings of those officers or of their superior in the department in such matters, nor can they reverse or correct them in a collateral proceedings between private parties.... It would lead to endless litigation, and be fruitful of evil, if a supervisory power were vested in the courts over actions of the numerous officers of the Land Department, on mere questions of fact presented for their determination."

In other words, what was really at stake here was the obliteration of nearly 40 years worth of legal battles over California rancho land titles. If the Cupeño were allowed to go ‘behind' the patent, and prove a possessory right ‘on a mere question of fact' that was not originally spelled out in the patent, it could open the door for every single rancho patent to be challenged by other settlers. And it seems clear that the courts had no intention of letting the rights of one little tribe of Indians overturn four decades of high-priced litigation.

Ward and Lewis' appeal on behalf of the Cupeño focused on six key points:

*That the rights of Indians under Mexican law were not limited to specific grants, but "were protected by the general law of the land."

*That under Mexican law, Warner's grant was subject to the possessory right of the Indians.

*That by treaty the United States agreed to preserve all existing property rights in the ceded territory, "which it is claimed includes the rights of these defendants."

*That confirmation of Warner's grant relieved the Cupeño of the need to submit a claim before the Land Commission, since their rights were bound up with his by Mexican law.

*That the Land Commission decision was between Warner and the United States government, and did not affect the Cupeño's rights in relation to Warner's original grant.

*That the 1880 Federal patent to Warner specifically says it does not affect the rights of "third persons."

The California State Supreme Court finally heard the Cupeño's appeal in April of 1899, and issued its ruling on October 4th of that same year. Several new justices had been appointed to the court since the days of the Soboba case, and on a split decision, the court agreed that the Cupeño and the other villagers had no rights to their homes. Four justices concurred, while three (including Chief Justice William Beatty) dissented. The majority decision (58 Pac 692) notes:

"Where a grant of land from the Mexican government is confirmed by the United States and a patent issued thereto, such patent is conclusive evidence of title, as against Indians claiming a prescriptive title to the same land."

The decision quotes extensively from the Soboba case but maintains that the Cupeño case "differs materially" from it because the land "was vacant and unoccupied at the date of the grant, and in the grant the clause in reference to the rights of the Indians is omitted entirely." The mere protection of servidumbres in the Warner grant "cannot be tortured into" meaning he must not disturb the Indians.

The decision relies heavily on the (historically false) contention that the Cupeño were not living at Cupa when the Warner grant was made in 1844, and the Marron letter is quoted in the decision as "proof" of this outlandish claim.

In his dissent, Chief Justice Beatty argued that there was no material difference between Byrne v. Alas and this case. He accepted servidumbres as broad enough to include the possessory rights of Indians, and affirms that Cupeño were living in the valley "long before the date of the Warner grant." In a concurring dissent, Justice Thomas McFarland added that the Cupeño's rights existed even without the clause in the Warner grant, and that they were under no obligation to submit their claim to the Land Commission. "They are mere wards of the nation, and it is to be presumed that the nation has always recognized and protected their customary rights, and that all its grants are made with the understanding that the grantees know these rights, and take subject to them."

But history and legal precedent were not enough to save the Cupeño once a white man decided he wanted their land. D.L. Withington, one of the Downey family attorneys, while welcoming the verdict, was mild in his comments to the press: "There is and never has been any indications of any unfairness to the Indians on the part of the owners of the ranch, whose standing in the community is such as to insure the utmost fairness towards the Indians."

In other words, the Downey family were far too prominent to want to appear prejudiced toward the Cupeño - they simply wanted to use the courts to throw them out of their ancestral homes. But after the removal, Withington felt free to express a different opinion. Any sympathy for the Cupeño, he wrote, was "misplaced" and irrational. He scoffed at their "morality" (his quotes), claiming that "their chief diversion is gambling," and insisting that they had "held these springs and lived there without working, as other Indians do, for more than half a century... [and] lived like princes among their fellows off of other people's property" from the income they received from the hot springs.

Ward and Lewis immediately asked the court for a rehearing, but their request was denied. That left only two options: the Cupeño and the other villagers could leave their homes, or the case could be appealed to the United States Supreme Court.

By now, the Warner Ranch case was attracting more and more attention, and so the United States Attorney General's office stepped in and filed the appeal on behalf of the Cupeño. Shirley Ward went to Washington in March, 1901 to help argue the case before the Supreme Court along with Assistant Attorney General Henry M. Hoyt. "It is unnecessary to say that Mr. Ward devoted himself to the hearing in the Supreme Court with the same energy, zeal, and ability that he has shown in the previous stages of the case..," Hoyt later wrote. "I must confess that I felt very confident after the oral argument that we had impressed the Court."

Yet the results were the same. On May 13, 1901 the United States Supreme Court upheld the ruling of the California courts - the Cupeño would have to go. The Court "rested the result upon the legal principles," and not "upon the merits of the Indians' claim," Hoyt noted.

As before, the Barker case was combined with the Quevas case ("The facts in the cases are so nearly alike that it is sufficient to consider only the first."). The decision (181 U.S. 481) was issued without dissent. Once again the infamous 1844 "vacant and abandoned" letter was quoted to support the claim that the Cupeño were not on the ranch at the time of the Warner grant. Moreover, the court ruled, even if the Cupeño once had a valid claim, they lost it when they failed to present it for confirmation by the Land Commission in the 1850s. In response to the argument that this policy did not live up to the terms of the Treaty of Guadalupe Hidalgo, the court quoted from their decision in the case of Botiller v. Dominguez (130 U.S. 238):

"[S]o far as the [1851] act of Congress is in conflict with the treaty with Mexico, that is a matter in which the court is bound to follow the statutory enactments of its own government. If the treaty was violated by the general statute enacted for the purpose of ascertaining the validity of claims derived from the Mexican government, it was a matter of international concern, which the two states much determine...."

In other words, the Cupeño had no standing to question whether the United States Government was living up to the terms of the Treaty of Guadalupe Hidalgo, only Mexico could do that, in an international court.

The Cupeño had been cut off at the knees at every step of the way through the court system. Even if they had held rights under Mexican law, they had lost them because some government clerk had failed to mention them in Warner's grant. And even if his grant had included the required language, it didn't matter because Downey's attorneys had "proven" that the Cupeño were not living in the valley in 1844. And even if they were living on the ranch then, they'd lost their rights when they didn't file a claim with the Land Commission in the 1850s - even though the Land Commission was supposed to deal with the rights of Indians separately. And while they could not find any record that the Commission had studied the question of Indian property rights, the courts took it for granted that a report had been made, and having not seen it, naturally assumed that it had gone against the Indians.

In the end, all the legal maneuvering boiled down to the cold, hard fact that the Cupeño had lost. Ward and Lewis had presented the Cupeño's claim with clarity and diligence, but all they had managed to do was to delay the inevitable. The Cupeño would have to go. "It is hard to exaggerate the severity of their fate," the Attorney General wrote.

What to Do?

It is robbery, plain robbery.... If there is any honesty in the United States courts justice should be done to these Indians. - Fr. Anthony Ubach, 1899

With the decision of the Supreme Court, the Cupeño's fate was sealed. Legally, J. Downey Harvey could have had them evicted the day after the decision was issued, but he agreed not to do anything until Congress had time to act.

The government's first move was to set aside all the unclaimed public lands in the hills north of Cupa - most of it nothing but rock and brush and hillside not even good enough for a reservation. In July, 1901, the Indian Office recommended that a special inspector be sent out to locate a more suitable reservation site, but it would be four months before he arrived.

In the meantime, U.S. Senator Thomas Bard of Ventura County, a member of Committee on Indian Affairs, visited Cupa along with Mission Indian Agent L.A. Wright and William Collier of Riverside, then serving as Special Attorney for the Mission Indians. They also visited Puerta la Cruz, Mataguay, San José and La Puerta. After their meetings, Senator Bard reported that the Cupeño "won't entertain for a moment the possibility of being removed from the reservation.

"I told the Indians of the great possibility of them not being allowed to remain, and asked them where they would prefer to be transferred. The chief replied that if they were compelled to leave their present home they would all die; they want to remain where they have buried their fathers...."

The government made an attempt to buy the village lands at Cupa from J. Downey Harvey, but he refused to sell any smaller parcels, offering only a full 30,000 acres of the ranch for $245,000 - a cost far beyond the government's willingness to pay (which was probably Harvey's intent). This would have still left 14,000 acres at the south end of the ranch (including the site of the La Puerta and San José villages) for the long-expected reservoir project.

Late in November, 1901, Inspector James McLaughlin finally reached California. He spent a little over a week in the field, looking over possible reservation sites. He met with the Cupeño and was struck by how much they loved their old home. He also reported, "They had heard rumors of their threatened eviction, they said, but had never before believed it as really true." Certainly the Cupeño had heard much more than "rumors" by then, but the idea of being forced from their homes still seems to have been almost unthinkable to many of them. A few years later author George Wharton James recalled that, "Each time removal was intimated to the Indians they laughed - as children laugh if you tell them you are going to buy them from their parents."

McLaughlin's eventual choice for a reservation site was the Monserrate Ranch, in the hills between Bonsal and Fallbrook, in northern San Diego County, which he claimed was "far superior to any [other site] that I have examined." He recommended purchasing 2,370 acres there which was offered to the government for $70,000.

McLaughlin's recommendation was initially accepted in Washington, and in January, 1902 the Commissioner of Indian Affairs asked Congress for $100,000 to purchase the Monserrate Ranch and to relocate the Cupeño and the other villagers there.

That might have been the end of it were it not for a few Southern Californians who were outraged at McLaughlin's choice. Chief among them was Charles Fletcher Lummis, the influential editor of Out West magazine in Los Angeles. Buying the Monserrate Ranch was a farce, he declared. McLaughlin had seen the land in December, when it was green from the first winter rains; but come summer, the ranch was almost completely dry. What's more, he added, the owners had set an outrageous price. "[T]hese lands had been sold several times, recently, for about one-third what the Government was preparing to pay for them," he later wrote.

McLaughlin chalked these criticisms up to jealously, claiming his critics simply wanted to be able to take the credit for themselves of having found a new home for the Cupeño. "I earnestly endeavored to find a desirable home for those Indians, and did so," he maintained, "and I therefore have nothing to reproach myself with, regarding my selection.... I feel that I did my duty."

Lummis threw himself into the issue with his customary zeal. Even before McLaughlin had arrived in Southern California, on November 22, 1901, he had organized the Sequoya League, whose stated object was "To Make Better Indians." Quickly, Lummis and his League turned their attention to the Warner Ranch case. Through the pages of Out West and personal letters, Lummis insisted Washington disregard the recommendation of this "tenderfoot" visitor, and authorize a group of knowledgeable Southern Californians to make a proper selection. "Men who have known California for from 18 to 34 years are not to be so easily beguiled... as an equally good man whose acquaintance is of ten days," Lummis wrote.

Besides his magazine, Lummis had an ace up his sleeve - he had attended Harvard with Teddy Roosevelt. In November, 1901, Lummis went to Washington at Roosevelt's request and met with the President, along with the Secretary of the Interior and the Commissioner of Indian Affairs. He pushed his old acquaintance hard to get what he wanted, and Roosevelt responded enthusiastically. "Is the action of the Interior Department satisfactory?" he wrote to Lummis as events unfolded. "I stirred them up instantly after hearing from you."

Lummis also found an ally in Senator Bard who introduced a bill on behalf of the Cupeño on February 5, 1902. Later amended, Bard's bill spent nearly four months working its way through the halls of Congress before it was finally approved and signed into law by President Roosevelt on May 27, 1902. Bard's bill allocated $100,000 to secure a new home for the Cupeño and their neighbors and move them there. It also created the Warner's Ranch Indian Commission "to assist the Secretary of the Interior in purchasing suitable lands." C.F. Lummis was immediately appointed chairman. Joining Lummis on the commission were Russell Allen of San Diego (another old classmate of Roosevelt's) and Charles Partridge of Redlands, an active supporter of the Indian rights movement.

In March of 1902, when Lummis first learned that the creation of the Commission was likely, he visited Cupa and held a "junta" (as he liked to call it) with the Cupeño. Lummis was impressed with "the unvexed truth, the simplicity, the directness, the earnestness, and yet the perfect self-control of these aboriginal speeches." Captain Cecilio Blacktooth's speech (as translated by Celsa Apapas) has been reprinted many times:

"We thank you for coming here to talk to us in a way we can understand. It is the first time anyone has done so. You ask us to think what place we like next best to this place where we always live. You see that graveyard out there? There are our fathers and our grandfathers. You see that Eagle-nest mountain and that Rabbit-hole mountain? When God made them, He gave us this place. We have always been here. We do not care for any other place. It may be good, but it is not ours. We have always lived here. We would rather die here. Our fathers did. We cannot leave them. Our children born here - how can we go away? If you give us the best place in the world, it is not so good for us as this. The Captain he say his people cannot go anywhere else; they cannot live anywhere else. Here they always live; their people always live here. There is no other place. This is our home. We ask you to get it for us. If Harvey Downey [sic] say he own this place, that is wrong. The Indians always here. We do not go on this land. We stay here. Everybody knows this Indian land. These Hot Springs always Indian. We cannot live anywhere else. We were born here and our fathers our buried here. We do not think of any place after this. We want this place, and not any other place."

"But if the Government cannot buy this place for you, then what would you like next best?" Lummis asked Capt. Blacktooth.

"There is no other place for us. We do not want you to buy any other place. If you will not buy this place we will go into the mountains like quail, and die there, the old people and the women and children. Let the government be glad and proud. It can kill us. We do not fight. We do what it says. If we cannot live here we want to go into those mountains and die. We do not want any other home."

After meeting with the Cupeño, Lummis held another meeting with J. Downey Harvey, and found he would not budge from his $245,000 asking price for 30,000 acres of the ranch. So Lummis set out to do exactly what Capt. Blacktooth had begged him not to do - to buy the Cupeño another home.

The Commission made two tours of inspection through Southern California during the summer of 1902. Traveling with them were attorney William Collier, Judge Richard Egan of San Juan Capistrano, who was experienced in California land matters, and two representatives of the Cupeño, "intelligent and representative men," Ambrosio Ortega and Salvador Nolasquez, the father of Roscinda Nolasquez.

All told, the Commission considered 45 possible reservation sites, and visited 28 of them, traveling 943 miles by wagon and on horseback, and more than 1,000 miles by rail, along with "no small amount of walking." They examined each site, took photographs, measured the water flow, and made copious notes. Among the places considered were parcels at Santa Ysabel, Pauma, Moosa, DeLuz, Guajome, Los Flores (in San Bernardino County - not the old Las Flores ranch on the coast), Ethanac (now Romoland), Jurupa, San Pasqual, Agua Tibia, and Descanso.

Nolasquez and Ortega were often asked their opinion. Some of the sites, they admitted, were nice enough places, but they always made it clear that the people preferred to remain at Cupa. "[W]e reported for our Indians to such Commission that none of the places were satisfactory," they wrote in a letter to President Roosevelt, "owing to want of sufficient water for domestic and irrigating purposes and also for the want of sufficient agricultural land on which we could support ourselves... but the Commission did not regard our wishes which were to retain our old homes."

During that same summer, Commissioner of Indian Affairs W.A. Jones also visited California, and Lummis arranged for Nolasquez and Ortega to meet him. They renewed their requested to remain in their homes. He replied in a letter:

"I am sorry that the government cannot keep you on your old home at Warner's Ranch. There is no possible way to do so. The Commission and the government have done everything possible to save Warner's Ranch for you but it cannot be done. Nothing else would do any good.... The only thing you can do now is to go home and be ready to move peacefully to the new place when the legal authorities notify you to move....

"I am very sorry for you from my heart, and so are we all. But we have done all that could be done."

On August 28, 1902 the Warner's Ranch Indian Commission submitted their final report (much of it later reprinted in Out West magazine in April and May of 1903). Their choice for a reservation was the Pala Valley, where 3,436 acres could be purchased for $46,300. In addition, there were about 5,000 adjoining acres of public land that could be added by executive order (though much of it ran up the steep sides of Palomar Mountain), along with the existing 160-acre Pala Indian Reservation, which had been established in 1875.

"So far as is known," Lummis boasted afterwards, "never before in our history as a nation were Indians moved to better lands than those from which they were dispossessed."

The Pala Valley is located along the San Luis Rey River, which rises on Warner's Ranch and flows to the sea at Oceanside. It is surrounded by steep hills on all sides. The cities of Escondido, Fallbrook, and Temecula are all nearby, where there would be - Lummis hoped - a ready market for Cupeño crops. On the other hand, the Commission hoped Pala's relative isolation would protect it from some of the outside influences that troubled other reservations - "so accessible to civilization and so safe from aggression," as Lummis put it in their Report.

Not surprisingly, the owners of the Monserrate Ranch objected to the Commission's decision. A spokesman for their manager complained that "The commission came through like a circus, on horseback and in big wagons... it is plain that the Monserrate Rancho was visited at all only because they had to visit it... the main idea seemed to be to give it a black eye." Lummis dismissed the complaints. "If I had time to waste I could make some plain and forcible statements in the matter," he told the papers, "- but our report will speak for itself."

Pala was originally a Luiseño village, and in 1816 the Mission San Luis Rey had established an asistencia there called San Antonio de Pala. The dilapidated mission buildings still stood, and in 1902 the chapel had been re-roofed by the Landmarks Club - another Lummis creation. But the chief attraction at Pala was water from the San Luis Rey River.

Yet for the Cupeño, no place could ever rival Cupa. The more they heard what a prospective paradise Pala was, the more suspicious they became. "Why, if Pala is a good place to live, are the white people willing to sell their farms?" some asked. Others wondered what had become of the many Luiseño who had once lived in the valley . . . "Where did the white man get this land, so they could sell it to the government for us?" they wanted to know

Predictably, some people felt Pala was actually too good for the Indians. "No valley in San Diego County can compare with it," the Ramona Sentinel editorialized:

"In fact, it looks almost sacrilegious to turn over such a garden spot to the Indians, when if left to whites in time it would be an ideal of thrift and prosperity. The howl the Indians are making is because they will have to go to work. Heretofore they have made their living largely by begging - and worse - from the white visitors at the famous hot springs."

Nonsense, of course, but it shows the depth of feeling on the opposite side of the question. The fact is, as Southern California reservations go, Pala is indeed one of the better sites (though not necessarily better than Cupa, as Lummis always claimed). Yet as Salvador Nolasquez and Ambrosio Ortega said, to the Cupeño, it was no more desirable than Monserrate. Lummis never could seem to understand that.

Pala storekeeper Frank Salmons took on the task of securing deeds from all 15 owners of the Pala Valley, and by October, 1902 had gathered all the necessary signatures. The deed was accepted by the government on January 22, 1903, and the stage had been set for the final act.

(Read part two here)

© Phil Brigandi